On March 20, 1952, in the Court of First Instance of Leyte, Felix Bajon, Felix Gutierrez, Hipolito Messias, Sergio Nicdao, Martin Horilla and Anastacio, alias Tasio Compuesto, were charged with robbery in band with rape. Upon arraignment all of them pleaded not guilty. Subsequently, upon motion of the Fiscal, the court dismissed the case as against Anastacio, alias Tasio Compuesto, and Sergio Nicdao for insufficiency of evidence, the trial proceeding as against the other defendants. Thereafter, the court rendered judgment finding them guilty beyond reasonable doubt of the crime as charged, and sentencing each of them to suffer imprisonment for not less than 10 years and 1 day of prision mayor and not more than 17 years 4 months and 1 day of reclusion temporal, to indemnify, jointly, Pablo Masong in the amount of P150.00, and to pay the costs.

From the above decision, all the defendants appealed. Pending appeal which was taken to the Court of Appeals Felix Bajon withdrew his appeal, while the appeals of Felix Gutierrez and Martin Horilla were dismissed, that of the former due to his failure to file his brief on time, and that of the latter by reason of his death while in prison. Thus, only Hipolito Messias' appeal remained to be determined.

On September 7, 1960, the Court of Appeals rendered judgment convicting Hipolito Messias of the crime of robbery in band with rape committed with the aggravating circumstance of nighttime and sentencing him to life imprisonment, but because of the penalty imposed, the Court, in its Resolution of September 21, 1961, certified the appeal to Us.

The evidence clearly discloses that in the evening of February 29, 1952, in barrio Talibong, Cabugcayan, Leyte, Pablo Masong, his wife Eufrosina Elorde and step- daughter Leonila Tequillo were awakened by calls coming from outside their home asking for light because someone was allegedly bitten by an insect. When Pablo opened the door he was met by three armed men who demanded money from him. One of the intruders, Felix Bajon, then ordered his two companions, Hipolito Messias and Martin Horilla, to tie Pablo, after which Bajon opened a trunk and took therefrom cash amounting to P150.00, a ring valued at P7.00, earrings worth P6.00 and a knife valued at P1.50. Thereupon, the intruders, thru force and intimidation took turns in having sexual intercourse with Leonila, and afterwards departed.

The following morning, Pablo and his wife reported the incident to the barrio lieutenant who advised them to report the matter to higher authorities which they did. However, no arrest was made until March 4, 1952. In the course of the investigation conducted by the Chief of Police and the Justice of the Peace of Cabucgayan, the complainants fully identified Bajon, Gutierrez, Mesias and Horilla.

Appellant's only defense is an alibi. He testified that on February 29, 1952, he and Horilla were in barrio Tinambacan, Jaro, Leyte; that on March 2, they left that place for Cabucgayan to buy a pig for the approaching barrio fiesta and stayed in the house of Gutierrez; that on March 4, when they were about ready to return to Jaro, they were arrested by Cabucgayan policemen.

Appellant's defense is untenable for several reasons. In the first place, it is supported only by oral evidence easy to fabricate. In the second place, even appellant's witnesses admitted that, from the latter's residence in barrio Tinambacan, Jaro, Leyte, to the scene of the crime, was only a matter of nine to ten hours by boat; that when they went to barrio Taliborig, Cabucgayan, they left barrio Tinambacan at 7:00 a.m. and arrived at their destination at about 5 o'clock in the afternoon of the same date. In the present case, the crime was committed at about midnight. In the third place, appellant and his companions were definitely identified by the offended parties. Leonila Tequillo, the victim of rape, in fact singled out appellant as the person who ravished her thrice. Lastly, no sufficient motive on the part of Leonila, her mother, stepfather, the chief of police, and the justice of the peace has been shown to induce them to testify falsely against appellant. We find therefore no reason at all to disturb the findings made by the trial court.

However, the trial court failed to consider the aggravating circumstance of nighttime, and to sentence appellant to pay an indemnity to the offended party. In view of the aforesaid attendant aggravating circumstance, defendant should have been, as he is hereby sentenced to suffer the penalty of reclusion perpetua, and to indemnify the offended girl, Leonila Tequillo, in the sum of P5,000.00 (People vs. Demetrio et al. 86 Phil., 344; 47 Off. Gaz. Sup. 12 p. 23).

Wherefore, modified as above indicated, the decision appealed from is affirmed in all other respects, with costs.

Bautista Angelo, Concepcion, Reyes, J. B. L., Barrera, Paredes, Regala, and Makalintal, JJ., concur.